Mencap sleep-in pay update: Supreme Court date leaves care providers “on snooze” until 2020

Twelve months have passed since the Court of Appeal handed down the decision in the much-awaited Mencap appeal on the payment of National Minimum Wage (NMW) for sleep-in shifts by care workers. But residential and domiciliary care providers will need more patience – the Supreme Court will not consider the matter for another 9-12 months.

With the care sector in crisis over this issue for over five years since the decision in Esparon v Slavikovska, both care providers and employees (and their trade unions) are desperate for this pay dispute of key importance to be resolved. The HMRC Social Care Compliance Scheme added further complexity to a matter already of great concern for providers, as well as creating wrinkles in the acquisitions market of care providers – both residential and domiciliary – owing to a reluctance from acquirers to assume liabilities which are unknown and potentially substantial.

As social care continues to be a matter of central political concern, despite the seemingly never-ending focus on Brexit, it is disappointing – but not surprising – that there will be a further wait before the Supreme Court considers the case and subsequent decision. The appeal hearing has been listed for 12 and 13 February 2020, with the judgment likely to take several months thereafter to be delivered.

Whilst many care providers have taken a view on how to address sleep in pay for current staff – either paying NMW, introducing working nights or ensuring their sleep-in shift is distinguishable from working time – it is the bigger issue of back pay and associated HMRC liabilities that are the greatest looming concern.

For advice on how to address sleep in pay matters, or if you are looking to enter acquisition discussions, please contact Stephenie Malone or Rebecca Leask for further information.